University System of Maryland regents face criticism for secret vote, but no punishment likely

While questions about the University of Maryland's decision to join the Big Ten seemed to dissipate when school leaders explained the financial benefits of the move, doubts about the process used to reach the conclusion linger.

Before entering into serious talks with the Big Ten, Maryland President Wallace D. Loh signed a nondisclosure agreement pledging to keep details out of public view. Such agreements are not uncommon when schools' negotiations with conferences involve sensitive financial information.

But Tom McMillen, a member of the Board of Regents and former Maryland basketball star, said in an interview that he's concerned that confidentiality agreements squelch public debate that is appropriate and necessary before schools make such significant decisions. Open-government advocates believe the Board of Regents violated the state's open-meetings act as it tried to work within the constraints of the Big Ten's demands, and they lament that no punishment is likely.

A complaint filed with the Maryland Open Meetings Compliance Board could lead to the regents being forced to vote again, publicly. Legal action would have little impact because the university did not need the regents' approval to join the Big Ten.

"They may have violated the act, but so what?" said Bradley Shear, a lawyer in Bethesda who monitors the NCAA. "Maryland is going to the Big Ten. Nothing is going to slow that now. There's no recourse out there for those upset about this."

McMillen said the regents were denied the chance to hear from affected parties because the non-disclosure agreement restricted who could know what was unfolding. He said the school couldn't discuss its plans with the Atlantic Coast Conference, the league to which it had belonged for nearly 60 years.

McMillen said the agreement gave the Big Ten control of the process, allowing the conference to dictate terms to Maryland by "hijacking" debate.

He said regents should have had more information before deciding whether to endorse Loh's decision to move to the Big Ten.

"You get more documentation when you buy a cellphone," McMillen said.

The Student Press Law Center has argued that the public should have had more input.

"The purposeful exclusion of the public from the Board's deliberations reflects a disturbing indifference to the transparency obligations that accompany governance of a public institution," Student Press Law Center director Frank D. LaMonte wrote.

Lucy A. Dalglish, the dean of Maryland's journalism school and a longtime advocate for open government, said she had not examined the Board of Regents' actions but respected LaMonte's judgment on the matter.

"I imagine everyone wishes the process could be more open," she said.

Jim Lee, the editor of the Carroll County Times and a member of the Maryland Foundation for Open Government, said he believes the board violated the open-meetings act by convening without notice and by allowing some members to cast their votes on whether to support Maryland's move by telephone Monday morning.

In a prepared statement Wednesday, regents board chair James L. Shea and University System of Maryland Chancellor William E. Kirwan defended the board's process.

"Some … are reporting that the USM Board of Regents is not allowed to vote in closed session. That is inaccurate. The Maryland Open Meetings Act does not preclude public boards from taking action in closed session," Shea and Kirwan said in their joint statement. The statement also expressed regret that the "need to deliberate within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session."

Kirwan has said the attorney general's office approved the board's actions; calls requesting to speak with officials from that office were not returned.

Ultimately, the regents did not have to approve Maryland's decision.

"This is a decision that was the responsibility of the president's," Kirwan said in an interview earlier in the week. "But the president isn't going to make a decision of this magnitude unless he has the support of the chancellor and the Board of Regents. That's why we used the term 'endorsed.'"

Still, Lee hopes the high-profile nature of the vote and backlash to the shroud of secrecy surrounding it could inspire change.

"Maybe this is the impetus to really put some teeth into the law," he said.

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